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“Zealous Representation” in the Family Courts?

Thu, 08/24/2017 - 16:05 -- admin25

by Dawn Ryan Budner

Zealous representation is a term of art for lawyers—the long-held yardstick by which our duty to the client is measured. For courtroom lawyers, this means zealously advocating the facts and law in support of our client’s position. Assuming “zealous” means we are earnest and dedicated—rather than fanatical or wild-eyed—we do not question the standard very often. But what happens when the litigants are not business competitors but members of a family—mothers, fathers, and children?

The long-term impact of divorce and related court decisions renders the family court a most powerful force in the development of our culture today. Knowing this, are we doing enough to accommodate these complex, personal dynamics in our legal system? And, is “zealous advocacy” the appropriate benchmark to guide us?

The zealous lawyer began as one who “owe[d] his entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights. . ....” (“How Far a Lawyer May Go in Supporting a Client’s Cause,” Final Report of the Committee on Code of Professional Ethics ¶ 15 at 579 (1908).) But even in 1908, “warm zeal” was distinguished from the other kind of zeal, the one that gets carried away by the ego: Nothing operates more certainly to create or to foster popular prejudice against lawyers as a class, and to deprive the professional of . . . public esteem and confidence . . . than does the false claim . . . that it is the duty of the lawyer to do whatever may enable him to succeed in winning his client’s cause. Id.

These cautionary words ring just as true today.

In its 1989 Lawyer’s Creed, the Texas Supreme Court described the lawyer’s balancing act this way: “The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system.” So, while we owe our primary duty to the client, that duty exists entirely within a system of jurisprudence that derives its very legitimacy from the honesty and integrity of the lawyers and jurists who practice within it. Lawyers who value their reputations do not assert frivolous positions or file Rambo-style pleadings to harass or increase the costs to the opposing party. They do not alter or destroy evidence; nor do they mislead, misrepresent, misquote, or miscite facts or law. Indeed, an ethical lawyer will never sell his or her soul for the client’s cause, but not because of a disciplinary rule. These lessons we learned when our parents taught us not to lie, cheat, or hurt others.

But sometimes, our code of ethics demands more than just avoiding misconduct. Bd. of Law Examiners of State v. Stevens, 868 S.W.2d 773, 780 (Tex. 1994) (“Disciplinary Rules sometimes require lawyers to act with extraordinary courage.”). In becoming lawyers, did we not imagine a future in which we would change lives or save the day or at least make a positive contribution? Family practice is teeming with such opportunities, and as many pitfalls. Here, zealous representation of a client has consequences in the lives of other, vulnerable human beings. Sometimes, the “legal” rights of a parent may conflict with the best interests of a child. Are we then derelict, instead of zealous, in encouraging our client to pay for private school or college tuition, when the court would not have compelled him to do so? Are we zealous, instead of ethical, when we turn a blind eye from our client’s transfer of funds to a separate account? Or when we ignore or even exacerbate the client’s explosive rage against the other parent?

Family lawyers are humans whose egos can be piqued by the prospect of “winning” the case. And in family law, perhaps more than other areas, there is a tendency to blur the line between lawyer and client. We forget that there are humans on both sides of the table. We insist on positions when our client is willing to compromise. We follow the client’s instructions when we know she is suffering from a mental illness or maybe just the lack of compassion. When the lawyer loses objectivity, the client loses effective counsel. The art of family law is in guiding the client toward a solution without damaging or destroying lives in the process. In family court, there are no winners or losers. There are only families, who will be left to navigate what remains of their world after we finish.

Dawn Ryan Budner is a Partner at Calabrese Budner LLP. She can be reached at

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